Protection of Marine Mammals (USWTR)

Case Name:
Defenders of Wildlife, et al. v. U.S. Navy, et al.

Nature of Case:
AWI and its co-plaintiffs brought claims against the Navy over its plans to build an Undersea Warfare Training Range (USWTR) southeast of the Florida/Georgia border, which has the potential to adversely affect millions of marine mammals, including the critically endangered North Atlantic right whale whose calving grounds are adjacent to the project site. The lawsuit alleges that the Navy and National Marine Fisheries Service (NMFS), which authorized the project, did not adequately analyze the environmental impacts of operating the range before deciding upon construction.

Defendants:
United States Department of the Navy; Ray Mabus (Secretary of the Navy); National Oceanic and Atmospheric Administration; National Marine Fisheries Service; Gary Locke (Secretary of Commerce)

Status:
On September 6, 2012, the district court denied appellants’ motion for summary judgment and granted summary judgment to all defendants, concluding that the Navy and NMFS complied fully with NEPA, the ESA, and the APA. Plaintiffs appealed to the US Court of Appeals for the Eleventh Circuit, but on October 1, 2013, the Eleventh Circuit issued a decision affirming the district court’s grant of summary judgment.

Protection of Marine Mammals (USWTR): Background

On January 28, 2010, AWI and 12 other groups filed suit against the US Navy in the US District Court for the Northern District of Georgia alleging claims under the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. §§ 4321 et seq.), the Administrative Procedure Act (APA, 5 U.S.C. §§ 701-706), and the Endangered Species Act (ESA, 16 U.S.C. §§ 1531 et seq.), in connection with the decision of the Navy to install an Undersea Warfare Training Range (USWTR) along the East Coast, southeast of the Georgia/Florida border. The groups also sued the National Marine Fisheries Service (NMFS), which authorized the project.

The training range—expected to cost $100 million—calls for the construction of an extensive underwater system of cables, nodes and other instruments over an area 500 square nautical miles in size, and once installed, will host 470 war game training exercises involving ships, aircraft and submarines annually over a 20-year period. The project site is home to a variety of marine life, including whales, dolphins, sea turtles and manatees. Moreover, it is adjacent to the only known calving ground for the critically endangered North Atlantic right whale. The lawsuit alleged that the construction and operation of the range at the project site will undoubtedly pose multiple threats to these species, including collisions with fast moving ships, entanglement in range equipment, and widespread disruption from the extensive year-round use of high-intensity sonar systems during training.

The lawsuit alleged a variety of deficiencies related to the decision to install and operate the training range at the project site, such as the Navy’s failure to (1) adequately consider the impacts of installation and operation of the range, (2) include essential information in the Environmental Impact Study, and (3) ensure there would be no jeopardy to a listed species, as well as NMFS's failure to (1) use facts to support the conclusions in its biological opinion, and (2) issue an incidental take statement.

The parties filed cross motions for summary judgment on all claims. The district court held a hearing on the motions on March 15, 2012. On September 6, 2012, the district court denied plaintiffs’ motion for summary judgment and granted summary judgment to all defendants, concluding that the Navy and NMFS complied fully with NEPA, the ESA, and the APA. Shortly after the district court’s ruling, the Navy signed a contract to begin construction of the USWTR. Plaintiffs appealed to the US Court of Appeals for the Eleventh Circuit, narrowing their arguments on appeal to the following three claims: 1) the Navy violated NEPA and its implementing regulations by signing a contract for construction of the USWTR prior to signing a Record of Decision to operate the USWTR; 2) NMFS violated the ESA and the APA by issuing a biological opinion that failed to “meaningfully” analyze impacts from operations on the USWTR; and 3) NMFS violated the ESA and the APA by failing to include in its biological opinion a required incidental take statement predicting, assessing the impact of, and taking measures to minimize the impact of incidental take of threatened and endangered species that is expected to occur in connection with operation of the USWTR. On October 1, 2013, the Eleventh Circuit issued a decision affirming the district court’s grant of summary judgment.